Purcell v. St. Paul Fire & Marine Insurance Co.
| Decision Date | 07 June 1895 |
| Citation | 64 N.W. 943,5 N.D. 112 |
| Court | North Dakota Supreme Court |
Affirmed.
The only question not already discussed in the opinion in this case is the question of notice of loss. We assumed, in writing such opinion, that there was evidence that notice of loss had been given according to the provisions of the policy. On discovering our error in this particular, we granted a rehearing. It is obvious from the terms of the contract that the giving of immediate notice of loss in writing was a condition precedent to liability. No such notice was given apart from that contained in the proofs of loss. That proofs of loss constitute notice of loss cannot be doubted. See Weed v. Insurance Co., 133 N.Y. 394, 31 N.E. 231 at 231-234. When the proofs of loss in this case were furnished we are unable to say from the evidence. In view of the fact that the burden was on plaintiff to establish a case under the policy, we are compelled to hold that he has failed to show that immediate notice of loss was given by the furnishing of proofs of loss. They may not have been furnished until after it was too late under the terms of the policy to give notice of loss. Of course, the provision requiring immediate notice of loss must have a reasonable construction. A notice given within a few days after the loss would be in time. May, Ins § 462. But the record does not show that the proofs of loss which constituted the only written notice given were furnished within a few days after the fire. But we are clear that there was ample evidence that the giving of immediate notice of loss was waived. When the proofs of loss were received by defendant, there is no pretense that it promptly or at all, objected to their receipt, either as timely proofs of loss or as timely notice of loss. On the contrary, it retained such proofs of loss without objection or comment. Under our statute this constituted a waiver of timely notice. "Delay in the presentation to an insurer of notice or proofs of loss is waived if caused by any act of his or if he omits to make objection promptly and specifically upon that ground." Comp. Laws, § 4179. See, also, Johnson v. Insurance Co., 1 N.D. 167, 45 N.W. 799. It is urged, however, that the plaintiff cannot sustain the judgment on the theory that notice of loss was waived for the reason that no such issue was tendered by the complaint. The...
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